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Last week, the Chicago City Council passed the Chicago Fair Workweek Ordinance (“the Ordinance”), which requires employers to give workers early notice of their schedules or face penalties if they change shifts without sufficient notice.  For employers, this may present an administrative challenge, but employers should be prepared to address this national trend.  New York City, Philadelphia, Seattle, San Francisco, Oregon, and the District of Columbia have already enacted laws to protect worker schedules and limit employer discretion in adjusting employee schedules. Mayor Lightfoot is expected to formally sign the bill and it will subsequently be effective July 1, 2020. The highlights follow:

Who’s Covered?

  • The Ordinance requires employers in any “Covered Industry,” which includes building services, healthcare, hotels, manufacturing, retail, or warehouse services with more than 100 employees globally (250 in the case of non-profits) with at least 50 covered employees, to provide certain protection around the scheduling of an employee’s shifts.
  • For restaurants, the law is applicable for businesses with 30 locations globally and at least 250 employees.
  • The Ordinance applies to all employees, within Covered Industries, who make less than $26 per hour or receive an annual salary of under $50,000.


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On June 2, 2019, the Illinois General Assembly passed SB75, a legislative response to the #MeToo movement. Governor J. B. Pritzker is expected to sign SB75 soon, as it aligns with his campaign promise to tackle sexual harassment.

SB75 creates three laws and amends a number of others to increase protection for employees in Illinois who are victims of sexual harassment, sexual assault, sexual violence, and domestic and gender-based violence. Employers should be aware of the following highlights:


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Medical marijuana occupies a gray space within the United States. Marijuana is an illegal drug under federal law and is included on the Drug Enforcement Administrations’ Schedule I, along with heroin and LSD. The drugs on this schedule are considered to have “no currently accepted medical use and a high potential for abuse.” In spite of the federal prohibition, thirty states have passed some form of legislation allowing for the medical use of marijuana.

This conflict between state and federal law may cause employers confusion—especially in states with expansive disability protections. For example, the New Jersey Law Against Discrimination (“NJLAD”) which provides extensive protections for individuals with disabilities. The New Jersey Compassionate Use Medical Marijuana Act (“NJCUMMA”) supplements the NJLAD by stipulating that employees using marijuana for a medicinal purpose are considered to have a disability and such use is protected. These protections, of course, do not force employers to allow employees to use marijuana at work but do pose a dilemma when it comes to workplace drug testing. Many companies require employees to pass drug tests for federally prohibited narcotics. However, the NJLAD requires employers to provide reasonable accommodations to disabled individuals. Since the NJCUMMA classifies medical marijuana users as disabled, is a drug test a violation of their accommodations?
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The recent Equifax breach data and public missteps in handling the breach has companies revisiting their cybersecurity measures and refreshing their breach response plans.  Although not every company has consumer data likely to be targeted by hackers, employment files may be compromised, such as when breaches of U.S. government databases exposed the personally identifiable information

We have been watching with some concern recent developments in a much-publicized gender discrimination action filed in DC federal court by a female partner and practice group head in the Washington, D.C. office of Proskauer Rose LLP. The plaintiff filed her $500 million gender bias suit under a Jane Doe pseudonym on May 12, 2017, alleging that the firm engaged in salary discrimination and retaliation.  Proskauer vehemently denied Jane Doe’s allegations, and maintains that she was compensated fairly in accordance with her contribution to the firm, and its pay structure.

Last week, the legal press reported that the plaintiff was making the explosive allegation that she had been “threatened” with termination by the firm, after making an internal complaint of discrimination. It turns out that the alleged “threats” were made during a failed mediation held at JAMS, just before the suit was filed. Plaintiff “Jane Doe” claimed that a Proskauer attorney stated during mediation that she was “ going to be terminated,” because her “complaint upset a lot of people.”

This alleged “threat” was then made a matter of public record when Jane Doe’s counsel filed an emergency motion in the federal action, asking the court to order the mediator’s notes preserved, to settle a “potential he-said-she-said impasse,” on whether these alleged threats had been made. The same day Jane Doe filed her emergency motion, the court issued a minute order granting it, explaining “pursuant to the court’s inherent authority to oversee discovery and the need to preserve the status quo pending a fuller evaluation of the issues, JAMS must preserve the mediator’s notes from the parties’ March 23, 2017 mediation session and all other documents related to the mediation pending further order of the court. 
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On April 4, 2017, the Seventh Circuit became the first federal appellate court in the country to extend the protections afford by the Civil Rights Act of 1964 to discrimination on the basis of sexual orientation.  The 8-3 decision came after they held a rare en banc hearing on Kimberly Hively’s case (Hively v. Ivy Tech Community College).

The majority opinion written by Chief Circuit Judge Diane P. Wood cited several U.S. Supreme Court cases, including Price Waterhouse v. Hopkins and Loving v. Virginia, and agreed with Hively’s argument that, but for her gender, her employer would have kept her on staff.

“The Supreme Court’s decisions, as well as the common-sense reality that it is actually impossible to discriminate on the basis of sexual orientation without discriminating on the basis of sex, persuade us that the time has come to overrule our previous cases that have endeavored to find and observe that line,” Judge Wood wrote.


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In May 2016, the Equal Employment Opportunity Commission (“EEOC”) published “Employer-Provided Leave and the Americans with Disabilities Act” The EEOC published the guidance as it observed a “troubling trend:” employment policies that deny or restrict leave as a reasonable accommodation for employees with disabilities.  It has been a year since this guidance was published and it is worth revisiting this issue.

The issue arises as follows.  An Employer determines whether an employee is eligible for or has exhausted her Family Medical Leave Act (“FMLA”) leave.  If the employee is ineligible or has exhausted her FMLA leave, the employer may deny the employee’s request for leave without consideration of the requirements of the ADA.

The ADA requires, among other things, that employers provide “reasonable accommodations” to employees with disabilities if doing so will allow the employees to perform their essential job functions.  An exception exists if the accommodation would cause the employer “undue hardship.”


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It is a fact: employees leave.  According to the Bureau of Labor Statistics, the average worker currently holds ten different jobs before age forty.[1]  Because employee transitions are inevitable, businesses must prepare to secure their data when an employee exits the company.  Otherwise employers risk having their information (e.g., customer lists and related information, research and development, and strategic business development) stolen.  Stolen information can lead to the loss of competitive advantage, embarrassment and devaluation of image and goodwill, reduced profitability, and loss of core business technology.  These types of damages are difficult to ascertain in monetary terms.

Data is protected by (1) common law, (2) statutory law (e.g., Uniform Trade Secrets Act, Economic Espionage Act, Computer Fraud and Abuse Act, and state criminal codes), and (3) contractual agreements (e.g., non-compete, non-solicitation of clients).  While the law protects your data, a lawsuit to enforce such protection can be costly and time consuming with uncertain outcomes.  Thus, preemptive planning is the best defense.


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Your colleagues are on social media.  Ninety-seven percent of online adults aged 16-64 say they have visited or used a social network within the last month.[1]  Because social media continues to grow and constantly evolves, employers need to take a proactive approach to reduce risk and exposure to litigation related to social media.

In recent years, the National Labor Relations Board (“NLRB”) and the Equal Employment Opportunity Commission (“EEOC”) have made it clear that employees’ rights in “traditional offline communications” and communications over social media are afforded the same protections.

The NLRB is responsible for enforcing the National Labor Relations Act (“NLRA”), which prohibits discipline against employees who engage in “protected concerned activities.”  Protected Concerned Activities are conversations and efforts to organize around terms or conditions of employment (i.e. wages, benefits, staffing, etc.).  Examples of protected concerted activities on social media include posts relating to employee staffing levels implicating working conditions and posts regarding complaints and criticism about supervisor’s attitude and performance.  Often, the NLRB finds employers’ policies “overly broad” and “vague” and concludes employees would reasonably believe the policy restricts them from engaging in protected concerted activity.  Employers are most likely to have overly broad and vague provisions related to defamation, disparagement, confidentiality, and inappropriate e-mails or discussions.


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